Day: February 3, 2017

New in National Review: “Fair-Weather Originalists “

National Review has published in the 2/20 issue my essay, “Fair-Weather Originalists.”  This essay, which builds on an earlier online entry, seeks to chart the sudden reversal of positions on the left with respect to federalism, the separation of powers, and indeed constitutionalism more broadly. My original title was “Fair-Weather Constitutionalists,” as indeed there were many progressive originalists before Trump, but authors do not have control over such things.

Here is the introduction:

All of a sudden, progressives have discovered the separation of powers. After eight years spent ridiculing tea partiers who bitterly cling to the Constitution, liberals now embrace its structural protections as their last, best hope to stop President Trump. Today’s Left is just the most recent social movement that has appealed to the Framers after failing at the ballot box. And while I always welcome new students of originalism, I can offer only two cheers for our fair-weather constitutionalists. Their conversion, alas, is born of political expediency, not any sense of constitutional consistency.

From 2009 through early 2017, President Obama’s supporters blithely enabled him as he trampled the Constitution’s parchment barriers to implement progressive policies: granting lawful presence to millions of aliens, suspending enforcement of marijuana laws, rewriting onerous provisions of Obamacare, entering into international “agreements” without Senate ratification, and the list goes on. At each juncture, charges of lawbreaking on the right were met with crickets on the left. Their defense: The president has the discretion to act; courts should not serve as forums for political disputes; gridlock in Congress justifies the president’s actions. All the while, I warned that the precedents set by the 44th president would pave the way for even bolder actions by the 45th president.

Obama acolytes, who should have foreseen this risk, were complacent, perhaps because it was simply unthinkable that a Republican could regain the White House. What’s the downside to giving boundless authority to an executive you like? Alas, on Election Day, the Left was left flat-footed by Trump’s unexpected victory. On a dime, they turned to an unlikely source to preserve their progressive values: the text and history of the Constitution.

And, as relevant to the Emoluments Clause debate:

Up until 2016, discussions of the emolument clause were limited to law reviews. Scholars debated about what an emolument is and whether the prohibition applies to the commander-in-chief. For example, President Washington accepted a key to the Bastille from the Marquis de Lafayette without seeking Congress’s permission, but when President Jackson received a gold medal from Simón Bolívar, he surrendered it to Congress. Whether our first president violated the emolument clause was an interesting theoretical question, but practically it was irrelevant — until it became useful to progressive causes. A few days after the recent inauguration, Citizens for Responsibility and Ethics in Washington (CREW) filed a federal lawsuit against the president. The group alleged that revenue collected by President Trump’s business interests from foreign governments (e.g. hotel bills) constituted an unconstitutional emolument.

Despite the current outrage about payments from foreign governments, not a single constitutional scholar has ever batted an eyelash when sitting presidents profited from foreign governments. (Indeed, of the four law professors who joined CREW’s lawsuit, only one’s scholarship had actually discussed the Emoluments Clause before 2016.) President Obama’s books, for example, have generated nearly $17 million in royalties. It is safe to assume that at least one copy has been purchased by a foreign government. Where were the demands for the president to release his global royalty statements so we could determine whether Vladimir Putin or the National Library of China bought Dreams from My Father?

It doesn’t matter that book royalties are counted in pennies; the Constitution does not set a threshold amount for an unconstitutional emolument. Nor does Article I distinguish between payments made through a publishing company and those made through a real-estate trust. Do such payments constitute emoluments from foreign states? Who knows? Not even the most ardent tea-partier opponents seized upon this obscure clause, let alone filed a legal challenge. The issue has never been litigated.

I also discuss the decision of progressive states to turn to the federalism precedents–such as Printz and NFIB–to protect sanctuary city policies, even though the same states filed brief in support of the federal government in both cases.

I concluded with a cautionary note:

All these examples of ambivalence to principle are the embodiment of fair-weather constitutionalism. But a principle that was not justified by the text and history of the Constitution before November 8, 2016, does not become justified after Election Day. Those committed to the original understanding of the Constitution should welcome those who — at least for the moment — defend federalism and the separation of powers, but must not shirk from exposing this marriage of convenience.

I don’t expect litigators to espouse any sort of constitutional consistency, but scholars should be held to a higher standard. When we identify ourselves as professor, that connotes a certain authority that mild-mannered lawyers lack. Opposing precedents when they hinder our policy preferences, then immediately supporting them once they are helpful, saps whatever credibility academics possess.


Read More

Kozinski DACA Dissental: “Executive power favors the party, or perhaps simply the person, who wields it.”

Long before Texas v. United States was filed, challenging the legality of DAPA, the Arizona Dream Act Coalition filed suit against Arizona. Though not a direct challenge about the constitutionality of DACA, this case presented the question whether an action of the President–not Congress-can preempt a state law. Specifically, is an Arizona law that denies DACA recipients drivers license inconsistent with the Supremacy Clause.

The Ninth Circuit heard arguments on July 16, 2015. The following day, the panel (Pregerson, Berzon, and Christen) requested supplemental briefing on, among other topics, the Take Care Clause. It was around this time that the 5th Circuit heard arguments in U.S. v. Texas. The court sat on the case for almost a year, and filed an opinion invalidating the Arizona law on April 5, 2016–two weeks before SCOTUS heard arguments in U.S. v. Texas. On May 19, 2016, a petition for rehearing en banc was filed by Arizona. That petition sat idle throughout the summer, and the presidential election. Finally, on February 2, 2017, the petition for rehearing en banc was denied. Judge Kozinski, joined by Judges O’Scannlain, Bybee, Callahan, Bea, and N.R. Smith, dissented from denial of rehearing en banc.

The dissental, written in Judge Kozinski’s exemplary prose, is well worth reading.

First, he makes the important point that DACA was not a law enacted by Congress, but an executive action–how can this preempt a state law?

Does the Supremacy Clause nevertheless force Arizona to issue drivers’ licenses to the recipients of the President’s largesse? There’s no doubt that Congress can preempt state law; its power to do so in the field of immigration is particularly broad. But Congress never approved the deferred-action program: The President adopted it on his own initiative after Congress repeatedly declined to pass the DREAM Act—legislation that would have authorized a similar program.

Further, Konzinksi notes, the panel conflates what “law” is–not a statute that went through bicameralism and presentment, but instead executive diktat:

But Arizona follows federal law to the letter—that is, all laws passed by Congress and signed by the President. Thus, when the panel uses the term “law,” it means something quite different from what that term normally means: The panel in effect holds that the enforcement decisions of the President are federal law.

Ultimately, the resolution of this case hinges on whether DACA was lawful. Kozinski acknowledges that this ruling is in tension with the Fifth Circuit’s opinion:

Yet the lawfulness of the President’s policies is an issue that the panel bends over backward not to reach. See id. at 35–39. I am at a loss to explain how this cake can be eaten and yet remain on the plate: The President’s policies may or may not be “lawful” and may or may not be “law,” but are nonetheless part of the body of “federal law” that imposes burdens and obligations on the sovereign states. While the panel suggests other reasons to doubt Arizona’s response,1 the opinion’s slippery preemption theory simply isn’t one of them.

Undeterred, the panel claims that the President acted pursuant to authority “delegated to the executive branch” through the Immigration and Naturalization Act (INA). Amended op. at 27. According to the panel, Congress gave the President the general authority to create a sprawling new program that preempts state law, even though Congress declined to create the same program. This puzzling new preemption theory is at odds with the Supreme Court’s preemption jurisprudence; it is, instead, cobbled together out of 35-year-old Equal Protection dicta. It is a theory that was rejected with bemusement by the district court, see Ariz. Dream Act Coal. v. Brewer, 945 F. Supp. 2d 1049, 1057 (D. Ariz. 2013), only to be resurrected by the panel at the eleventh hour and buried behind a 3,000-word Equal Protection detour. It’s a theory that puts us squarely at odds with the Fifth Circuit, which held recently that “the INA flatly does not permit the [executive] reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits.” Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271, 2272 (2016) (per curiam). And it’s a theory that makes no mention of the foundational principle of preemption law: Historic state powers are not preempted “unless that was the clear and manifest purpose of Congress.” Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (internal quotation omitted).

That the panel can trawl the great depths of the INA—one of our largest and most complex statutes—and return with this meager catch suggests exactly the opposite conclusion: The INA evinces a “clear and manifest” intention not to cede this field to the executive. This is precisely the conclusion that the Fifth Circuit reached in Texas v. United States. Our sister circuit held that even if the President’s policies were of the type to which Chevron deference was owed—which the circuit assumed only for the sake of argument—such deference would be unavailable because “the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.” See Texas, 809 F.3d at 179. In other words, the INA has spoken directly to the issue and “flatly does not permit” executive supplementation like the DACA program. Id. at 184. If what the panel relies on evinces a “clear and manifest purpose” to cede a field to the executive, it’s hard to imagine what statute doesn’t.4

4. And even if it were undeniably the case that Congress delegated the power of preemption to the President, I am skeptical that such a statute would be constitutional. The nondelegation doctrine is still waiting in the wings. See generally Whitman v. Am. Trucking Assocs., 531 U.S. 457 (2001).

These are all arguments I made in my various briefs about DAPA–including the nondelegation doctrine argument. Kudos to Koz for flagging it.

Further, Kozinski echoes a point I made for quite some time: DAPA resides in the “lowest ebb” of Youngstown:

The vast power to set aside the laws of the sovereign states cannot be exercised by the President acting alone, with his power at its “lowest ebb.” Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).7

7 We are not in the “zone of twilight,” Youngstown, 343 U.S. at 637, where the distribution of presidential and congressional power is uncertain. Congress has repeatedly declined to act—refusing time and time again to pass the DREAM Act—so the President is flying solo.

Perhaps the most prescient aspect of Kozinski’s dissental–and the most myopic element of the panel’s opinion–is that whatever precedents helped Obama, will now help Trump.

At the crossroads between two presidents, we face a fundamental question of presidential power.

Presidential power can turn on and off like a spigot; what our outgoing President has done may be undone by our incoming President acting on his own. The judiciary might find itself, after years of litigation over a President’s policy, faced with a change in administration and a case on the verge of mootness.8 And our precedent may long outlive the DACA program: We may soon find ourselves with new conflicts between the President and the states. See, e.g., California and Trump Are on a Collision Course Over Immigrants Here Illegally, L.A. Times, Nov. 11, 2016; Cities Vow to Fight Trump on Immigration, Even if They Lose Millions, N.Y. Times, Nov. 27, 2016.

These looming conflicts should serve as a stark reminder: Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember the old warning: May all your dreams come true.

Well said.

I made a similar point in an piece at NRO shortly before the inauguration, and in a forthcoming magazine piece titled Fair Weathered Constitutionalism. “May all your dreams come true.”

Read More




Subscribe to YouTube Channel

[powr-youtube-gallery id=158059bf_1477783431]

Upcoming Events




February 2017
« Jan   Mar »